October 22, 2005

I oppose the Miers nomination. Let me say that clearly, in those words, so I can be counted in N.Z. Bear's effort, described here. Must I say why here too? I've already said it so many times. You can follow the trajectory of my opinion of the nominee, which peaked on October 11th with my "Mellowing on Miers" post. I'd mellowed, mostly as a matter of contrarian instinct, upon reading a few too many emails from lawprofs who were too self-regardingly overvaluing constitutional theory. I don't require hardcore commitment to a theory -- the conservative's originalism or the liberal's "active liberty" or whatever. John Roberts -- a model nominee -- did not commit himself to any theory of interpretation.

What I do require is demonstrable analytical ability. I have seen no evidence of the level of ability that we have an obligation to demand from a Supreme Court justice. This is not a time to be nice or to give an unknown a chance. It's a lifetime appointment. President Bush made a terrible choice, and Miers did not decline. I was willing to wait for the hearings to make a final call, but the handling of the nomination has been so abysmal: the botched questionnaire, the bolstering with religion, the lack of any coherent defense in the face of weeks of criticism. It's just too much! End it, already!

The suspect tapped the car window Wednesday morning with a gun and motioned the driver to get out...

But the driver -- who had just bought a cup of hot coffee -- slammed the car door into the carjacker's legs, threw the coffee at his neck and face and wrestled him to the ground....

I like to order "extra hot" anyway. Now, I'll have mental pictures of wrestling villains to the ground!

By the way, I have been viciously attacked with a car door -- by a woman who incredibly stupidly believed she was protecting herself from me. I was biking in NYC in the standard bike area between the parked cars and the moving cars. She was walking toward me in the same path and somehow formed the belief that I would not go around her and suddenly grabbed the door and flung it all the way open, causing me to crash into it.

ADDED: Since I'll be in retreat, feel free to use the comments on this post to discuss whatever you'd like, subject to the usual decency standards that prevail around here. That is, talk amongst yourselves.

CORRECTION: Checking the calendar. In fact, it's next Saturday two weeks from today!

MORE: I'm trying to think if I feel better having thought I needed to do this today and then realizing I didn't than I would have felt otherwise. Considering how dreary the weather is today, I wish it was this weekend...

Yesterday, I said I'd been gearing up to be completely passive, and now the day has arrived. Today Next week is the law school retreat, part of our self-study, required by the ABA for reaccreditation. My role is secretarial: I'm taking notes in the room where the discussions about the curriculum will take place. There will be four sessions, two in the morning and two in the afternoon. In other rooms, there will be discussions on other topics, and most of the faculty will move from room to room, taking part in each of the four discussions. I will hear the curriculum discussion four times. Two other faculty members will have to lead this discussion four times. I will simply be taking notes on the four discussions and then compressing the notes into a summary.

I'll bring my laptop. I'm thinking it will be a lot like simulblogging -- without the jokes, without the gotchas, without the glass of wine and the TiVo-pausing.

Well, frankly, it won't feel like simulblogging at all. I'll be off the grid most of the day. But there will be some breaks. I'll be checking in here periodically. And I'll be monitoring the news sites. Because you know something might happen today.

Harriet, I'm looking at you.

Must check for news before hitting "publish."

No, not yet....

UPDATE: Still no Miers withdrawal, but I realize I've still got another weektwo weeks to go before the retreat. I need to look at calendars more often. Now, my gearing up to be completely passive will be so attenuated!

I've been under the impression that was the real number, ever since I read Gyn/Ecology about 15 years ago. But I see here, that number is entirely wrong:

"For witchcraft and sorcery between 1400 and 1800, all in all, we estimate something like 50,000 legal death penalties," writes Wolfgang Behringer in "Witches and Witch-Hunts" (Polity, 2004). He estimates that perhaps twice as many received other penalties, "like banishment, fines or church penance."

Other recent estimates range from 40,000 to 100,000 executions over those early modern centuries. These remain appalling numbers, even when put in the context of the far greater numbers killed in religious wars and the fact that resort to capital punishment was at one of its high points in European history.

No one should underestimate the cruelty these numbers represent. "Witchfinders," Malcolm Gaskill's full-blooded account, just published by Harvard University Press, of the most notorious witch hunt in English history, makes that clear in engrossing detail.

But contemporary historians bridle at the huge numbers that have become part of the witch hunt mythology-and the implicit or explicit comparisons to the Nazi campaign of genocide. Professor Behringer traced the estimate of nine million victims back to wild projections made by an 18th-century anticlerical from 20 files of witch trials. The figure worked its way into 19th-century texts, was taken up by Protestant polemicists during the anti-Catholic Kulturkampf in Germany, then adopted by the early 20th-century German neopagan movement and, eventually, by anti-Christian Nazi propagandists.

In the United States, the nine million figure appeared in the 1978 book "Gyn/Ecology" by the influential feminist theoretician Mary Daly, who picked it up from a 19th-century American feminist, Matilda Gage.

Do such unfounded myths do anyone any good? Certainly many feminists, including some identifying themselves as neopagans, agree with contemporary historians about the answer: No.

UPDATE: Cathy Young (who also participates in the comments) expresses shock at my "rousing book" compliment to "Gyn/Ecology." (She and I also had some debate about the writings of Andrea Dworkin.) I wrote this in the comments:

I just said it was rousing, not that it was good or right. I went through a period when I read a lot of Dworkin and Daly's books. They were very stimulating, but also ultimately stimulated me into wanting to distance myself from them. There are plenty of things in the treatment of women to be outraged about, but polemical works that demand that you reach and maintain a permanent state of anger just seem sad after a while (or dangerous, if they are actually effective).

Many of their justifications cannot be dignified as arguments. Of those that can be, some reveal a deficit of constitutional understanding commensurate with that which it is, unfortunately, reasonable to impute to Miers.

Man, that is one hoity-toity sentence. But it's true!

As I was just trying to do with my last post, Will lays down the rule that every Democratic Senator who voted against Roberts must vote against Miers or lose all credibility (as anything other than political hacks). He has a rule for Republican senators too:

[A]ny who vote for Miers will thereafter be ineligible to argue that it is important to elect Republicans because they are conscientious conservers of the judicial branch's invaluable dignity. Finally, any Republican senator who supinely acquiesces in President Bush's reckless abuse of presidential discretion -- or who does not recognize the Miers nomination as such -- can never be considered presidential material.

A conservative political consultant with ties to the White House said the president and his political team once thought Democrats would go easy on Miss Miers, a friend of Mr. Bush's and his personal counsel. The theory was that Democrats see her as the best they could expect in the way of Bush appointments to the high court.

"But now Democrats smell blood in water," said the Republican, adding that he received a call from Miss Taylor seeking contingency advice on how to handle a possible decision by Miss Miers to withdraw her name or a decision by the president to withdraw the nomination.

"So there are some in the White House and some Republicans in the Senate who are worried the Democrats can now build a case that she is not competent enough or knowledgeable enough to be a justice on the Supreme Court," he said. "Really, that is the most damaging case you can build against a nominee."

The reason, he said, is that "non-ideologues would be responsive to that competence argument, and Republicans won't be able to argue that her defeat was ideological -- that the reason the Democrats beat her was that she was too conservative."

Well, I've been saying it's ideological of the Democrats not to oppose her. They opposed Roberts as much as they could, and he was sublimely qualified. How can you oppose him and not her? It must be that you think she's weak and will drift, surprise, or at least be uninfluential. This preference for a weak justice over a hyper-competent justice like Roberts is utterly political and in service of the Democrats ideological goals. Anyone who challenges Roberts and then turns around and gives Miers a pass can never credibly claim to be relying on the principles they will need to cite in the next case if they want to look like something more than purely political ideologues.

I can understand why the Democrats have not done much of anything yet. The Republicans are fighting each other. And it looks lofty to wait for the hearings. But what will happen at those hearings? The Democratic senators will need to behave in a way that is proportional to the way they treated Roberts. If not, they'll look like hypocrites (and we bloggers will point it out). If so, it will, in all likelihood, be a humiliating experience for Miers -- and Bush will deserve all the blame for his abysmal choice.

He and Billie "Buckwheat" Thomas teamed up against older boys Spanky and Alfalfa in many of the comedies. The Porky character is credited with originating the catchphrase "otay."

In the interview, Lee recalled a warm friendship with his black costar when they were kids and praised their interracial relationship on screen, saying, "Buckwheat played an absolute equal part in the Gang."

Lee told friends his career ended when a growth spurt made him thinner. "They wanted Porky to be a chunky fellow, so they looked for someone else," [his partner, Janice] McClain said.

SARAH JESSICA PARKER has admitted that she has taken to dressing like The Beatles to please her two-year-old son James. "He wants all of us to dress like the Beatles in the Yellow Submarine era – collars with flowers, really weird haircuts and bell bottoms. He will only wear bell bottoms, which are not easy to find. So I dress in a way that makes him happy because he is the centre of our lives."

"The only way we could get him out of pyjamas was to tell him he could dress like a Beatle!... My son has some strong feelings about what I should and shouldn't be wearing. James is like, 'Take that dress off, I don't like it.' Or, 'I'd like you to wear long pants today.' So I dress in a way that makes him happy, because he basically is the centre of our lives," she said.

This year there are several entries for the Least Appealing Title of the Year. I, for one, will not be reading Easy-Gaited Horses, nor The Forgotten Half of Change, which appears to be a self-help book and not a guide to what to do with all those leftover euro coins.

On the other hand, do not be put off by The Gene that Makes You Smell Like a Fish. This pioneering work by Lisa Seachrist Chiu exposes some of nature’s most peculiar genetic quirks: the black urine gene, the werewolf gene, the gene that makes you hate broccoli and (my particular favourite) the Dracula gene, a mutation in zebra fish that causes their blood cells to explode on contact with light.

But the overall prize for The Book I Am Least Likely to Read goes to The Sex Life of Food by Bunny Crumpacker (I’m not making this up). Bunny has put food on the couch, to bring us “Food and Gender: Subconscious Symbolism” and “A Freudian Look at Flour”. Read this book, and you will never feel quite the same way about baking.

Wait a sec... I am so grossed out by the notion of a gene that makes your urine black!! I mean, I was so amused by Bunny Crumpacker, and then I just kept looking back with horror!

I wonder, what's the most ridiculously unappealing book in your home collection?

That's just something I said yesterday. I was referring to something I'm going to have to do all day tomorrow. I'd been given my role, and someone at the meeting was proposing a new way to switch off roles over the course of the day. No, no. I've already adjusted my mind around the current plan, psyching myself up for the day. I've been gearing up to be completely passive.

Me too. Though I go on to worry that the place is too noisy and chaotic. I'd be in women's prison, of course, so it might be okay. And if I could have high-speed internet access and permission to blog...

Imagine you stand in the middle of vast, hostile desert. A camel is your only means of transversing it, your lifeline to the future. The camel is burdened-- stumbling, loaded down, tired; enfeebled-- the conditions of the modern life are clearly not favorable to it. But still it’s your only hope, because to get across that desert you need a camel.

The Senate is on high alert now, despite your sponsor's strong-arm tactics. You may be able to avoid those private meetings with Senators that seem to be going so poorly, but you will not be able to avoid the confirmation hearings. Thousands of bloggers will be hanging on every word of those hearings. Your worst nightmare: Ann Althouse has Tivo!

It's no secret that I think the Harriet Miers nomination was a mistake. Nonetheless, when asked how she will do in her confirmation hearings, my answer is, I hope she does well. I have no desire to see her humiliated. Nor would I take any joy in seeing her rejected, though I continue to believe it would be best for the country that she not be confirmed to the Supreme Court.

And while I remain as exercised as anyone by the lack of wisdom of this choice, I part company with those who see the Miers nomination as a betrayal of conservative principles. The idea that Bush is looking to appoint some kind of closet liberal David Souter or even some rudderless Sandra Day O'Connor clone is wildly off the mark. The president's mistake was thinking he could sneak a reliable conservative past the liberal litmus tests (on abortion, above all) by nominating a candidate at once exceptionally obscure and exceptionally well known to him.

The problem is that this strategy blew up in his face. Her obscurity is the result of her lack of constitutional history, which, in turn, robs her of the minimum qualifications for service on the Supreme Court. And while, post-Robert Bork, stealth seems to be the most precious asset a conservative Supreme Court nominee can have, how stealthy is a candidate who has come out publicly for a constitutional amendment to ban abortion?

To avoid the devastating hearings that almost surely lie ahead, Bush can take advantage of the current dispute over document production:

For a nominee who, unlike John Roberts, has practically no record on constitutional issues, such documentation is essential for the Senate to judge her thinking and legal acumen. But there is no way that any president would release this kind of information -- "policy documents" and "legal analysis" -- from such a close confidante. It would forever undermine the ability of any president to get unguarded advice.

That creates a classic conflict, not of personality, not of competence, not of ideology, but of simple constitutional prerogatives: The Senate cannot confirm her unless it has this information. And the White House cannot allow release of this information lest it jeopardize executive privilege.

So Miers needs to withdraw, and here is an elegant way to withdraw gracefully. Today would be a good day.

Sound familiar? President Bush said that yesterday. In the midst of all the controversy about the Miers nomination, Bush just keeps saying the one thing he always says. How exasperating! And what galls me the most is that it's not at all believable, because Miers has no demonstrable commitment to constitutional interpretation. She's been presented to us as someone who will simply vote the right way. That's the very essence of acting like a legislator.

The Washington Times reports that Harriet Miers won't be visiting with any more senators prior to her hearings. She's only done 25 visits -- and they've been "more chaotic than courteous." John Roberts visited 50 senators.

The meetings have been fraught with misunderstandings and disagreements, giving ammunition to detractors, both liberal and conservative, that Miss Miers is in over her head.

"No one is walking out of these meetings thinking they've just met with a star," a Republican Judiciary staffer said yesterday.

The official story is that she needs the time to bone up on constitutional law for the hearings and that the hearings will present the candidate more clearly. But does anyone really think she'll be able to present herself more favorably in the hearing room than in those private meetings?

Regarding Ms. Miers's qualifications, we aren't among those who think an Ivy League pedigree or judgeship is a prerequisite for a Supreme Court seat. But the process of getting to know Ms. Miers has been the opposite of reassuring. Her courtesy calls on Senators have gone so poorly that the White House may stop them altogether.

And on Wednesday, the Senate Judiciary Committee took the extraordinary step of asking her for what amounts to "do-over" on a standard questionnaire about her judicial philosophy. The impression has been created, fairly or not, that Ms. Miers is simply not able to discuss the Constitutional controversies that have animated American political debate for two generations....

[A]fter decades of Republican anger over judicial activism, and 20 years of disappointing GOP Court selections, a nominee who was a blank slate was bound to get pounded. Mr. Bush has set her up to be hit by a withering political crossfire....

Perhaps Ms. Miers will prove to be such a sterling Senate witness that she can still win confirmation. But so far the lesson we draw from this nomination is this: Bad things happen when a President decides that "diversity," personal loyalty and stealth are more important credentials for the Supreme Court than knowledge of the Constitution and battle-hardened experience fighting the judicial wars of the past 30 years.

Also in the Wall Street Journal, John Fund notes that "the politics of the Harriet Miers nomination are getting stranger." About that Texas Lottery Commission:

Two key players in last year's presidential campaign--Jerome Corsi, co-author of the Swift Boat Veterans book "Unfit for Command," and Ben Barnes, a former Texas lieutenant governor who claimed President Bush got special treatment when he joined the Texas Air National Guard--are involved in the debate.

In a plot twist worthy of "Dallas," Mr. Barnes is effectively siding with President Bush's appointee, while Mr. Corsi is opposed. Mr. Corsi has written a half dozen Internet stories on the Lottery Commission scandal, while Mr. Barnes is calling the offices of Democrats on the Judiciary Committee and urging them not to question Ms. Miers about the Lottery Commission because it will prove embarrassing to him and other Texas Democrats....

[Go to the link to read the details of the controversy!]

The bizarre maneuverings behind the Miers nomination threaten to take the confirmation hearings far afield from a discussion of constitutional law and judicial philosophy....

But another possibility is that both political parties' desire not to turn up old scandals--whether they be the Lottery Commission or who exactly did fake those Air National Guard memos that appeared in the same "60 Minutes" segment as Ben Barnes--prompts senators to suggest privately to Mr. Bush that Ms. Miers withdraw. It's a cliché, but doubly true in this case, that politics makes strange bedfellows.

(Hmmm... good general point about which scandals play out on the public stage.)

• Withdraw Harriet, nominate Edith. Harriet Miers is the canary in the Bush mineshaft. Her nomination sent fissures through the walls of a Republican coalition already cracking under the weight of federal outlays for a prescription drug entitlement and highways to nowhere. The disappointment of conservative intellectuals over attorney Miers is said to have been predicted inside the White House, and discounted. A mistake. Many of the best people in conservative politics have walked away from the Bush presidency.

The President needs his party to sustain him through the end of the term, and most of all this means completing the mission in Iraq. A Supreme Court nomination, however important, is a political obligation. Iraq is a moral obligation. The Miers nomination, by undermining the President's standing in his own party--and it has--is threatening Mr. Bush's ability to finish the job in Iraq. The imperatives of presidential leadership trump personal loyalty, especially in time of war, and we are at war.

October 20, 2005

That's one of the many complaints Michigan fans had about the way they were treated here in Madison the day the Badgers thrillingly snatched victory from the jaws of the Wolverine.

“Michigan on the 24th was I think head and shoulders probably the worst [game] in recent years in terms of feedback from visitors,” University of Wisconsin spokesperson John Lucas said.

Selected feedback, in the form of five previously private e-mails to UW administrators, was made public at a press conference Wednesday as the university seemingly attempted to come clean about alcohol abuse within its student body.

“I have attended games at nearly every Big Ten stadium and can categorically state that Madison is the worst,” Michigan fan Mark Jacob Thomas, who reported having hot cocoa and bratwursts thrown at him at past Badger games, said in an e-mail to UW Chancellor John Wiley. “Iowa fans are nuts and Ohio State fans are hostile, but at Wisconsin, the students are drunk beyond comprehension and incredibly abusive verbally and physically."

I'm sure the disappointment of losing so dramatically had nothing to do with the motivation to email in a complaint about the Badger fans.

In three and a half hours of hearings at the Senate Foreign Relations Committee, Ms. Rice was both conciliatory and combative, rebutting the gloomy assessments from senators of both parties but at the end offering a weary concession to Senator Barack Obama, Democrat of Illinois.

"I understand that, yes, it might not work," Ms. Rice told Mr. Obama, referring to American plans to raise the effectiveness of Iraqi forces and heal Iraq's fractious society. "But every day we have to get up and work at our hardest to make it work."

Obama is never quoted in the article, and we are given no indication of what he might have done to wrest this "concession" from Rice. Statements of numerous other senators appear further down in the article.

Ron Cass and Ken Starr argue (unlinkably) in The Wall Street Journal that "The Supreme Court needs help on business law issues" and that Harriet Miers, with "her significant experience in business law," can provide it. Gordon Smith (who teaches business law) looks at the record and finds little evidence that Miers is much of a business law maven.

What are the reasons for supporting Harriet Miers? I've been trying to understand that. I find the failure to express dismay at the embarrassing selection rather strange. Let me start a list, based on my observations, of the various sorts of Miers non-critics -- they aren't really supporters, are they? -- based on what I think I'm seeing and a little speculation:

1. Some folks must just love Bush, the man. They're fans!

2. Some people think it serves the overall good of the country (and, perhaps, the world) to support the President, whatever he does. Do not make any trouble for the President. Shhh.

3. Some people think it serves the good of their party to support the nominee. This would include Republicans, who don't want to see anything go badly that involves their side, and Democrats, who think their folks will fare best staying out of a fight as long as the other side is fighting itself.

4. Maybe some people just don't think the Supreme Court matters very much and, when a slot opens, it can be filled with just about anybody. Oh, maybe pay some attention to how the person will vote, especially on one issue that you care about, but other than that... what? -- am I supposed to believe there's some sort of "legal analysis" skill involved here? Don't be so naive! It's all politics!

5. Some people think the Court matters a lot, but they want the conservative side de-fanged. As long as a conservative president is making the appointments, the preference is for minimal judges, the less analytical skill and jurisprudential dedication the better. Let Miers come on the Court as nothing more than a floating vote to be captured by one of the other justices.

6. Some people feel sympathetic toward Miers, the woman. The attacks are mean, I must defend her! She's a human being, with feelings. She's worked hard. She's just a regular lawyer, a decent person, and the attackers are a bunch of elitists who are pissing me off.

October 19, 2005

A nice juicy podcast -- 58 minutes! -- about chocolate, music that samples an Althouse lecture, aesthetic autonomy, not reading too many novels, an electric toothbrush, shopping strategies, a dead skunk, "The Colbert Report," "Extras," "South Park," what position a baby should sleep in, setting the thermostat (and your virtue), the disappearance of Cindy Sheehan, why I'm annoyed at Democrats, Bush, and Robert Bork about Harriet Miers, what Jesus might think about affirmative action, and how rather nice the weather has been lately, here in Madison, Wisconsin.

There is, to say the least, a heavy presumption that Ms. Miers, though undoubtedly possessed of many sterling qualities, is not qualified to be on the Supreme Court. It is not just that she has no known experience with constitutional law and no known opinions on judicial philosophy. It is worse than that. As president of the Texas Bar Association, she wrote columns for the association's journal. David Brooks of the New York Times examined those columns. He reports, with supporting examples, that the quality of her thought and writing demonstrates absolutely no "ability to write clearly and argue incisively."

Let me add this very precise observation I received in an email from an able judicial law clerk:

Can you read a two-page letter she wrote in 1995? It's on pages 13 and 14 of a collection of documents the New York Times released a while ago. You can easily access it by clicking [here] , scrolling down just a little bit, and clicking on pages 13 and 14. It should take no more than a few minutes.

I find the letter truly unbelievable. Not in substance; just in terms of grammar and general writing ability. I know that some bloggers and folks in the media have profiled Miers' writing (like the Brooks piece you blogged about), but I don't think anyone has said much about this letter. I mention it to you in particular because you have commented on the value of good prose in a Supreme Court Justice, and you appeared to have been pretty underwhelmed by the snippets of Miers' writing in the Brooks piece. Of course, you may not find it particularly noteworthy, but I suspect that you probably will.

[Althouse response: "Is that letter really written much worse than a typical federal judge's opinion? It's belabored and repetitious, but it's not embarrassingly bad, is it?"]

Hmmm... I admit that the average federal judge produces mostly unremarkable prose, but it's usually not in this league:

"For example, charging unconscionably high fees are prohibited..."

"Comparisons with other jurisdictions and the effect of any proposed rule has been historically painstakingly performed to ensure that our disciplinary rules adequately protected the public."

"The State Bar Act similarly recognizes that attorneys in this State are 'subject to the disciplinary and disability jurisdiction of the Supreme Court' and in its opening provisions emphasize 'the judicial department's powers under the constitution to regulate the practice of law'."

I could probably nit-pick at least six comma problems, the missing apostrophe ("in harms way"), and some other small stuff. Those would be forgivable if the letter were otherwise clear and well-written (wasn't Justice Jackson terrible at grammar?). But it isn't. Miers' writing, here and elsewhere, is characterized by run-on sentences ( e.g., the seven-line sentence in the final paragraph and the six-line sentence in the second paragraph) and clunky sentence structure. Sure, many other lawyers write like her, but they haven't been nominated to the Supreme Court.

Couldn't almost any Wisconsin 1L, presented with the bill in question, write a clearer two-page letter opposing it?

A harsh judgment, but I can't say it's wrong. Can you?

More Bork:

The administration's defense of the nomination is pathetic: Ms. Miers was a bar association president (a nonqualification for anyone familiar with the bureaucratic service that leads to such presidencies)...

...she shares Mr. Bush's judicial philosophy (which seems to consist of bromides about "strict construction" and the like); and she is, as an evangelical Christian, deeply religious. That last, along with her contributions to pro-life causes, is designed to suggest that she does not like Roe v. Wade, though it certainly does not necessarily mean that she would vote to overturn that constitutional travesty.

There is a great deal more to constitutional law than hostility to Roe. Ms. Miers is reported to have endorsed affirmative action. That position, or its opposite, can be reconciled with Christian belief.

What??? It takes some nerve to say that. [ADDED: I misread that comment. In fact, I agree with the observation, as what I say next shows.] Jesus said: "So those who have the last place now will have the first place in the future, and those who have the first place now will have the last place in the future." (Read the whole parable.) I wouldn't presume to say that approves of affirmative action, but I'm truly mistrustful of anyone who would say it can't possibly support it.

More Bork:

Issues we cannot now identify or even imagine will come before the court in the next 20 years. Reliance upon religious faith tells us nothing about how a Justice Miers would rule. Only a commitment to originalism provides a solid foundation for constitutional adjudication. There is no sign that she has thought about, much less adopted, that philosophy of judging.

The point should be that a judge who would rule from religious belief is not a proper judge. It's not a matter of whether we would like the outcomes or not. It's a matter of the illegitimacy of accepting the role of judge and then operating from religious tenets rather than the law. In fact, I would think a genuinely religious person would perceive it as a sin to assume power in such a fraudulent way.

Bork goes on to demand that Bush's judicial nominees embrace originalism, which good conservatives have been cultivating ever since his own nomination went down in flames (for embracing originalism): "Any philosophy that does not confine judges to the original understanding inevitably makes the Constitution the plaything of willful judges." This is a huge overstatement, which John Roberts himself refuted at his hearings.

My take on Bork is that he does a good job of pointing out Miers's shortcomings, but his view of what makes a proper judge is too narrow. That said, I can see why hardcore conservatives like him feel betrayed by Bush's failure to nominate an originalist. I've said I think Bush made a campaign promise to do so, but maybe Bork doesn't agree. He thinks Bush's judicial philosophy amounts to nothing more than "bromides about 'strict construction' and the like." Maybe Bush didn't promise much of anything. Even so, he owes us excellence. He met the standard with Roberts, and then he stumbled miserably.

"The Colbert Report" dragged through long laughless parts. Why? For two reasons: First, the people Colbert is ridiculing are already widely viewed as cartoonish; and second, he has chosen parody, rather than mockery, as the vehicle for making his point....

During his interview with [Stone] Phillips, Colbert complimented his guest's neck, boasted about his own Emmy and Peabody awards, and debated the merits of different tie knots. Basically he teased him. This kind of light banter is key to [Jon] Stewart's interviewing technique, but it's usually inlaid with more sincere questions. The balance of funny and anodyne keeps the report buoyant. But in his parodic mode, Colbert couldn't retreat into normal conversation. And his frantic humor seemed to discomfit Phillips, the audience, and the cameraman (the interview was a series of awkward angles and cuts).

Phillips's uncomfortable turn as a guest raises a question about "The Colbert Report": Is it lampooning newscasters, or is it promoting their senses of humor? Up until the interview segment, the show seemed like a straight-up O'Reilly spoof. But O'Reilly doesn't interview fellow cable newsmen; he talks to officials, congressmen, scandal-ridden citizens. He does so with an inane ferocity, while Colbert interrogated Phillips with a prankish, but gentle, buffoonery. So "The Colbert Report" has a split personality--on the one hand, making fun of punditry; on the other, winking along with it. The scheduling of future guests such as Lesley Stahl indicates that this schism will persist.

It is hard to do the comic character while interacting with real guests. Martin Short was able to do it as Jiminy Glick, but most of his guests were comedians, who had some ability to play along with the game. (Jerry Seinfeld was truly sublime as a guest on that show!) So far, Colbert has had only newsfolk on, and they are so preening about their images and not much good in the acting department.

We mean the 100 best English-language novels since 1923. But trust us. We know something about what we're talking about, even though we bungle the intro. Time Magazines top 100 novels. Sort of nice feature: links to the original reviews, but you have to subscribe to get past the first paragraph.

Is this a silly list? I see it has "Are You There God? It's Me, Margaret."

Why "since 1923"? There must be some book from then -- "A Passage to India" (1924)? -- that they were hot to include and then drew the cut-off at that point so they wouldn't have to be bothered with anything else.

Most of these books you'd have to pay me a lot of money to read. I have read some of them. Some I've read parts of and always meant to finish. Some I've read parts of and then flung aside, most memorably "The Golden Notebook," which contained a preface by the author saying life is too short to read books that fail to engage you. If you find yourself reading such a book, you ought to fling it aside! Great advice, from Doris Lessing!

Ah, isn't it obvious? I just don't like novels very much. I've wasted too much time trying to be the sort of person who loves novels.

UPDATE: A former student of mine writes:

I saw your post on novels today, and I feel compelled to give you one of Austen's great defenses of novel reading, this from her early novel "Northanger Abbey."

"Oh, it is only a novel!" ... or, in short, only some work in which the greatest powers of mind are displayed, in which the most thorough knowledge of human nature, the happiest delineation of its varieties, the liveliest effusions of wit and humour are conveyed to the world in the best chosen language."

"Pride & Prejudice" also contains a great but more subtle defense of novels--the fantastically preposterous Mr. Collins declares to his shocked cousins how he, unlike the ladies, never bothers with novels and only reads books with a more serious stamp.

I'm very aware of the reasons given for the importance of reading novels, and I've been influenced by this sort of thing for most of my life. I've never snobbily turned up my nose at novels, like Mr. Collins. I've always had the impression that the best people read novels. That has motivated me to try to be the sort of person who reads a lot of novels. Great mental powers, knowledge of human nature, and wit and humour are also displayed in well-chosen language in works of nonfiction and even in blogs or in live conversation. And novels also contain plenty of foolish notions, tedious observations, phony depictions of human nature, and awful writing. I'm most interested in learning about things that are true and hearing great ideas, and I have never found novels to be a particularly rich source. Of course there are the emotion-stirring stories, but for that, there are so many movies to see, nearly all of which are fiction. But I find I don't have much interest in stories -- all those personal problems with relationships! Even for a film, I'd rather see a documentary.

Wilma's top sustained winds reached 175 mph early Wednesday in the most rapid strengthening ever recorded in a hurricane, said meteorologist Hugh Cobb of the National Hurricane Center in Miami. At the same time Tuesday, Wilma was only a tropical storm with winds of 70 mph.

Its confirmed pressure readings Wednesday morning dropped to 882 millibars _ the lowest ever measured in a hurricane in the Atlantic basin, according to the hurricane center. The strongest on record based on the lowest pressure reading is Hurricane Gilbert in 1988, which dipped to 888 millibars....

Forecasters said Wilma was more powerful than the devastating September 1935 hurricane that hit the Florida Keys, the strongest Atlantic hurricane to make landfall on record. But Wilma wasn't expected to keep its record strength for long, as higher disruptive atmospheric winds in the Gulf of Mexico around the hurricane should weaken it before landfall, Cobb said.

Well, that last sentence is reassuring, at least. Still, Katrina and Rita were Gulf of Mexico hurricanes.

"I don't know what we're going to do. We should do an episode about how the town can't wait to see this show and what they're going to do about Hurricane Katrina." (They may complain, but they can't help themselves: on tonight's episode, a beaver dam breaks, causing a flood in a neighboring town. Assigning blame becomes the top priority.)

Sounds great. I'll watch. I'm so ready to see everyone skewered re Katrina, especially those who so self-righteously skewered exactly the people they were already politically opposed to.

Doug Herzog, Comedy Central's president, said: "For Matt and Trey, life is still a term paper. They put it under the professor's door at 11:59."

This crunch is what allows "South Park" to comment in real time on zeitgeist themes, from news headlines to video-game releases, but it's a harried process. Mr. Stone and Mr. Parker begin the Thursday-to-Wednesday week in the writers' room, where they throw around ideas. When they hit on ones that might work, Mr. Parker writes individual scenes so that the animators can begin creating the actual episode. As days pass, those scenes add up to 21 minutes with, eventually, a beginning, an end and a plot. As for how they arrive at an episode's larger narrative, Mr. Parker described the different approaches: "Do we come at it from, 'Remember this from third grade'? Do we come at it from, 'This happened on the news'?"

It must be that part what gives the show its spirit is the dash to clip diverse ideas together -- riffing on the news and pop culture and tossing it together with things from one's own life.

Will pro-choice Senators continue to fail to oppose Harriet Miers now that that we have seen the survey she provided to Texans United for Life in 1989?

News articles act as if this survey reveals only "her personal views on abortion" and says nothing about "whether she believed that the Constitution protected a right to abortion." But one of the questions was: "If Congress passes a Human Life Amendment to the Constitution that would prohibit abortion except when it was necessary to prohibit the death of the mother, would you actively support its ratification by the Texas Legislature?" She answered yes.

That shows more than a personal view about abortion. She supported ending the right to abortion. True, it doesn't say whether she would say there is no right to abortion in the Constitution as it exists today without that amendment, but it does show that she did not consider abortion to be a matter properly left to the individual. That is, she did not have the (very common) position opposing abortion in the sense that she herself would not have an abortion but that she would respect the autonomy of other women as they make their own moral choices. This willingness to take away the independent choice of the individual is something more than personal. It is an attitude toward individual rights that affects how a judge would approach the question whether there is a constitutional right to abortion.

Senator Dianne Feinstein, a California Democrat and leading abortion rights advocate on the Judiciary Committee, called Ms. Miers's responses to the survey troubling.

"The concern is whether she is able to look at issues relating to the health of the mother, which is coming before the court, relating to Roe, in an open and unbiased manner," Ms. Feinstein said, referring to Roe v. Wade, the 1973 case that established a constitutional right to an abortion.

Why such a lukewarm respose from the Democrats? If the files on John Roberts had contained something like this they would have boiled over.

It's no mystery. The Democrats want Miers confirmed because they fear a more powerful nominee. Roberts was opposed because of his strength, because he clearly had what it takes to be a Supreme Court justice. The Democrats tolerate Miers because she seems to lack the qualities that will make her a solid and influential justice, and they are hoping she will fall under the sway of the liberal justices who will court her vote. It's the best they can hope for from Bush. In this sense, they are protecting the right to abortion.

President Bush showed his disrespect for the independence of the judicial branch when he chose Miers, and the Democrats are doing the same thing now as they give her a pass.

October 18, 2005

The second episode of his new show is on in about an hour. Aren't you excited?

From the somewhat old linked article:

Colbert’s ... fake-news program, “The Colbert Report,” which, starting in October, will air just after the fake news on “The Daily Show.” “It’ll be like O’Reilly segueing into Hannity, Hannity into Greta, Larry King into Aaron Brown,” he said. “I love that Aaron Brown, the way he sucks the flavor out of every word, and I love the way he mulls. No one mulls the news like Aaron Brown.” If “The Daily Show” is faux evening news, “The Colbert Report” will be faux Bill O’Reilly. “The focus will be me, lots of me,” Colbert said. “Occasionally, we’ll turn the camera elsewhere, but only for pacing.” And what sort of presence will “Stephen Colbert” have? “My ambition is to have Stone Phillips’s neck and Geraldo Rivera’s sense of mission.”...

Colbert is forty-one, a native of South Carolina, one of eleven children, the father of three, a suburban guy, and deaf in one ear. “I had this weird tumor as a kid, and they scooped it out with a melon baller.”

Deaf in one ear. I can only think of one other genius who is/was deaf in one ear.

I love the opening credits for "The Colbert Report." The use of the eagle is so disturbing!

Digression: The other day, I was driving around in the countryside and I saw these beautiful birds of prey swooping about. Eagles, I think. I saw one up ahead going at some roadkill, and I was excited at the opportunity to get close to the magnificent bird. As I pulled up next to the roadkill, the bird flew away, and I smelled and saw that the roadkill was a skunk. Imagine thinking a skunk was a tasty treat. I don't understand birds.

I bought an electric toothbrush today. I was on one of those shopping errands, where you go into a big store -- in this case, Target -- needing maybe one thing -- in this case, toothpaste -- but you start to ideate furiously from the moment you park the car about what other things you could possibly buy so it won't seem so foolish to go to all this trouble to buy just that one thing. Yeah, Halloween candy. I need a lot of that. But why not a nice electric toothbrush to go with that toothpaste. That's a satisfying combo. It even seems to relate to the candy. I find some other things and finally check out to the tune of $272. Good thing I made sense of that errand, because otherwise I might have just spent $3.

Anyway, I got to thinking about the last time I had an electric toothbrush. It was back in the 1960s, when the first electric toothbrush was introduced in the United States: the Broxodent! I had to Google to jog my memory about that brand name. (I found this article, which contains the info: "most Americans did not brush their teeth until Army soldiers brought their enforced habits of tooth brushing back home after World War II. " Oh my!)

I remember feeling incredibly lucky to have this new device, even though it was hard to control. It lacked an on-off switch, believe it or not. You had to squeeze the "brakes," two black pads on opposite sides of the handle. It was not easy for a kid to do.

Now that I think about it, I realize my parents were kind of into gadgets. They got central air conditioning before anyone else in the neighborhood. My father built electronic things from kits and built in various speakers around the house. He had a device for planting "plugs" of zoysia grass, which were supposed to spread into the most amazingly beautiful lawn, but never did. And he was quite fond of his "Contour Chair" (which seemed futuristic at the time, but now would be associated with blood donation, I think).

Where am I going with this post? Oh, I don't know. Just trying to accumulate more things at this point. Kind of like that shopping trip!

Are you impressed by the fact that Harriet Miers moved into the managing partner position at a big law firm and spent a lot of time in bar assocation work? If you are, are you also someone who knows much about what areas of work lawyers of different abilities move into? If you are in a position to know what a career path like this really means about a person's legal acumen, email me. I'll keep your identity private (unless you clearly request to be named).

UPDATE: From a person of impressive large law firm experience:

Often - especially in large law firms -- partners with diminishing, diminished or little business, but whom the firm wants to keep for various reasons, take on bar association or administrative work at the firm. (The analogy in academia would be to tenured professors who do a lot of “service,” but do not do much research/publishing or active teaching.) There are many factors involved in such career paths (and certainly some highly distinguished lawyers who are truly competent and have significant business also take on such work). For associates, such a path is often (but not always) a sign that there is a problem, whether with the availability of work for that associate, the quality of the work, or otherwise.

MORE:

By way of background, I worked for five years as an associate at a 100 lawyer office of a "large law firm" in the midwest. For the following three years I worked at a bank and became aware of the internal politics of two mid-to-large Chicago firms.

My perceptions of the managing partners at these firms is that do not tend to be "the best" in their field. That is to say, if they are a litigator they are not the best litgator at the firm; if they are a transactional attorney they are not the best transactional attorney at the firm. I think the reason for this is the best litigators tend to be the ones who love it and if you are a managing partner you don't have much time for litigating. My experience was also that managing partners tended to have very good relations with some of the firm's largest clients and/or a strong presence in the community.

The managing partners I was aware of were universally smart though and had many skills which many other lawyers lack. Most notably, while everyone likes to get what they want and many lawyers are good at getting what they want, the managing partners I was aware of were good at getting what they wanted through consensus or the appearance of consensus.

Assuming she has those skills, it would be interesting to see how they translate in a group of nine.

I was unimpressed with none of the managing partners I came to know of. Then again, none of them were nominated to be on the U.S. Supreme Court.

HERE'S ANOTHER:

When I see that someone is managing partner, I can be sure of one thing: that person is politically astute and powerful. However, I would never draw any conclusions (based on that fact alone) about that person's pure lawyering ability or intellect.

What does it mean to be politically astute and powerful? It might mean that person has the largest book of business and the firm would fold if he or she left. Therefore, that person has the brute power to get anything he or she wants. Now, it may be the case that the managing partner has the most billings because he or she is the best lawyer in the world and all the clients know it, or it might mean that he or she inherited the book of business from a retired partner who was cultivated through years of sucking up.

The fact of being managing partner might also mean that the person has impressive people skills to unite a group of strong-minded partners. A related phenomenom is the managing partner who is the least objectionable among warring factions within the partnership. Of course, these qualities again say nothing about legal acumen.

Thus, a person can become managing partner for a variety of reasons, some of which may be related to intellect and lawyering skill but some of which have nothing to do with those qualities.

As for the bar activities, I would agree with the poster with "impressive large firm experience." When I see that kind of resume, I adopt a presumption that it may be a negative signal. Now, I would characterize my presumption as "easily rebuttable" because I have known excellent lawyers with significant bar activities. However, I have also known big firm partners who have used such activities to mask the fact of extremely weak abilities.

Bottom line for me? I just don't know enough about the nominee to form any judgments about her lawyering skills or intellect. I think it's admirable and impressive that she was the managing partner of a major firm, but it tells me nothing (without more) about intellect and analytical ability.

Thank you for letting us include your lecture samples. The cadence of your speech perfectly complemented the music....

Unbeknowst to me, a Federal Jurisdiction lecture of mine was recorded by my student Trent Johnson a few years back and samples of it used in his musical work. I was actually a little afraid to listen to it. But it turns out it's really just a tiny bit of my speech on one track -- called "Your Excellency." And, no, I don't think that's what my students usually call me when I'm not around.

What's it like in Madison, in the beginning of the second half of October? Is it snowing yet? You may wonder. Well, no. It's a brilliantly sunny day with the temperature near 70. You can tell it's getting close to winter by the very long shadows at midday. But State Street is full of young people in short sleeves, strolling along and lolling about in the sidewalk cafés that are everywhere:

Ooh, and rounding the corner -- quick, get a shot -- it's the Bucky wagon, honking the tune "On Wisconsin":

UPDATE: I'll bet no one checks the Site Meter as often as I do. I can become mesmerized clicking from one page of it to another. What's going on with the world map? Let's map the last 200 visitors. Someone in Riyadh is reading. Let's look at the time zones. The "Who's On?" pages. Who's been on the longest? Why someone in Virginia Beach has been reading for over 100 minutes and has viewed 40+ pages. How's the year going? Will this month be the highest traffic yet? How about the referring web pages ranked by visit? And the search words ranked by visit? As usual, the therefore symbol and Kate Moss naked are doing well, with some interesting action today for "high heeled boots" and "fo shizzle" -- which I doubt I've ever written. Yeah, it's in a comment. Ha, ha -- I come up fifth in Google for "fo shizzle." That's so wrong. And now writing this post might boost me higher in the crazy ranking business that is Google. And so, hours drift by....

That's one way of posing what has become a hot question. Experts have been telling parents to put babies on their backs to sleep, but babies really like to sleep on their stomachs. (So do I!) There is some correlation between sleeping on the stomach and Sudden Infant Death Syndrome. SIDS is rare, but so terrible that the hope of cutting the risk in half seems to justify putting your baby to sleep in a position it finds uncomfortable.

[M]ost pediatricians concede that when babies are placed on their stomachs, they tend to sleep better, they are less apt to startle and they often sleep through the night sooner.

And despite the warnings, a growing number of parents - exactly how many is impossible to quantify- are turning their backs on the Back to Sleep campaign. Postings on child-rearing Web sites also indicate a trend.

"The Web consensus is that it is O.K. to do," said Sarah Gilbert, a mother in Portland, Ore., and the editor of the popular Web log bloggingbaby.com.

The web consensus -- what a concept! (Are we supposed to capitalize web?)

This reminds me of the story I posted about last week about single women who seek to have children by artificial insemination and use the web to connect with those who support them and contradict the opposition they find in their immediate environment. It's important to see that the web is working this way, allowing people to escape the set opinions that surround them in the physical environment.

It works that way for me, by the way. I live in Madison, Wisconsin, an insular place, with a lot of fairly like-minded people. By blogging, I can leap beyond this place and get affirmation for saying things that would only otherwise have gotten me glares and shunning.

There is good and bad to this phenomenon. You can find support for all sorts of genuinely bad things on the web. But there's a very high end to the positive side. I think first of people in repressive countries getting inspired about freedom and individual rights. And there's every sort of thing in between.

Anyway, about stomach sleeping. I'm sure it's what I wanted as a baby, because I've never stopped (except when pregnancy made it impossible). To sleep on your stomach as an adult is not as looked down upon as putting your baby to sleep on its stomach, but it's something I find occasion to deny. I don't need my chiropractor scolding me and explaining to me about all the damage I'm doing to my spine and my neck. Get off my case! It's a great pleasure to sleep and to sleep face down is the best!

UPDATE: Lots of comments from parents, most of whom favor the comfortable baby, one of whom is grieving over the loss of a child to SIDS. You know, reading these comments, I suspect that the connection between SIDS and back sleeping is that the back-sleeping baby is sleeping less deeply and waking up a lot. The very thing parents don't like about back-sleeping is what protects from sudden death. But there should also be a question of what is lost if the baby isn't sleeping well. Perhaps the brain does not develop in the same way without solid sleep. Maybe the statistics about the increase in ADD and autism ought to be correlated to the back-sleeping trend.

For some reason, I was just thinking about "The Preppy Handbook," which came out a quarter century ago. Do people still read it? Checking Amazon, I see they do. There are many five-star reviews from within the last year (even though you can't actually buy the book on Amazon). An example:

This book written in 1980 says that the Preppy outlook is timeless. As a non-prep, I can't vouch for all the features, but as for clothes and jobs it still holds true. Putting aside all the details in this book (which are many) is a certain "je n'est ce what the f*ck" unique to the preppy worldview that this author has revealed.

As for clothes, J.Crew 25 years later still features the same Fair Isle sweaters, the hot pink and lime green striped grosgrain belts, the loud print skirts (small prints are considered "ditsy"), and the embroidered repeating motifs on pants. All of these things that I just thought were... ugly, actually are quintessential preppy style.

I finally got around to watching the first episode of "Extras," the new HBO series starring Ricky Gervais. It's a comedy, but when it ended -- I am not kidding -- I broke down and cried! Nothing at all sentimental had happened or made me feel emotional during the show, but when the closing credits came up, I started to cry! I can only think that the show hit some level of artistic brilliance that brought on tears -- like the way people cry in front of great paintings. That was weird!

(Some spoiling follows.) The Gervais character harshly but blandly states his atheism early on in the episode, then, confronted with a woman with cerebral palsy who believes she will live free of the diseases in the afterlife and sexually interested in her sister, he says he's a Catholic. Later, there is a long scene where a priest sees through him and brings him to confession. There are other religious and sexual themes woven throughout the half-hour show. I'm in awe.

After meeting with Miers on Monday, [Senate Judiciary Committee Chairman Arlen] Specter twice flatly and unequivocally told reporters that she declared her support for Griswold -- a position likely to upset conservatives already uneasy about her nomination.

"She said she believes there's a right to privacy (in the Constitution)," Specter said. "And she believes Griswold was rightly decided."

Specter, a supporter of abortion rights, said he believed Miers' position on Griswold would be "relevant, not determinative" of her views on Roe.

However, a White House official later disputed Specter's statements.

"She has not discussed specific cases with other senators. Today was no different," said the White House official, who requested anonymity because of the sensitive nature of the private discussions. "My understanding is Senator Specter is going to correct his comments."

Specter then released a statement that stopped short of a correction:

"In their meeting this afternoon, Sen. Specter thought Ms. Harriet Miers said she agreed with Griswold v. Connecticut and there was a right to privacy in the Constitution. After Sen. Specter commented on that to the news media, Ms. Miers called him to say that he misunderstood her, and that she had not taken a position on Griswold or the privacy issue. Sen. Specter accepts Ms. Miers' statement that he misunderstood what she said."

It worked for John Roberts to affirm the right of privacy but take no position on Roe v. Wade. I assume that those who are prepping Miers to straddle the fence effectively advised her to do exactly the same thing. But the true answer for her is probably: I have never studied the question in the kind of depth I would need to do as a judge. But to say that is to admit how green she is as an interpreter of constitutional law.

Rough times ahead! And if Specter keeps helping her out of a jam it's going to be rather embarrassing.

UPDATE: Good discussion in the comments, with many suggesting that Sheehan was marginalized for saying too many things that did not fit the specific needs of Democrats. Ironic -- isn't it? -- that she was useful precisely because she is a real person, but proved unusable because she is a real person. I'll give her credit for being more than a political tool. She said what she thought, a lot of which was flaky. It's an interesting lesson for politicos who are thinking of making a real person the centerpiece of a campaign.

Beating out National Geographic's blue-eyed Aghan girl, Vanity Fair's naked, pregnant Demi Moore, and that Saul Steinberg New Yorker cover that everyone loves, according to the American Society of Magazine Editors. I don't disagree. It is entirely original and endlessly fascinating.

Here's a free link to Frank Foer's TNR piece that attributes the conservative complaints about the Miers nomination to the fact that conservatives never liked Bush all that much anyway:

As the Miers debate reveals, many conservative intellectuals have exactly the same problems with Bush as liberals. They disdain his cronyism, doubt his intelligence, question his use of "character" to judge individuals, and can't stand his pandering to evangelicals. "The trouble with Harriet is that she has given us a depressing glimpse into the vast open space that now appears to be the Bush political mind," a piece on The Weekly Standard's website argued last week.

John Fund writes in the Wall Street Journal about the behind-the-scenes assurances the White House gave pro-life conservatives about Harriet Miers. Will the confirmation hearing delve into the October 3 conference call?

Some participants in the Oct. 3 conference call fear that they will be called to testify at Ms. Miers's hearings. "If the call is as you describe it, an effort will be made to subpoena everyone on it," a Judiciary Committee staffer told me. It is possible that a tape or notes of the call are already in the hands of committee staffers. "Some people were on speaker phones allowing other people to listen in, and others could have been on extensions," one participant told me.

Should hearings begin on Nov. 7 as is now tentatively planned, they would likely turn into a spectacle. Mr. Specter has said he plans to press Ms. Miers "very hard" on whether Roe v. Wade is settled law. "She will have hearings like no nominee has ever had to sit through," Chuck Todd, editor of the political tip sheet Hotline, told radio host John Batchelor. "One slipup on camera and she is toast."...

Should she survive the hearings, liberal groups may demand that Democrats filibuster her. Republican senators, already hesitant to back Ms. Miers after heavy blowback from their conservative base, would likely lack the will to trigger the so-called nuclear option. "The nomination is in real trouble," one GOP senator told me. "Not one senator wants to go through the agony of those hearings, even those who want to vote for her." Even if Ms. Miers avoids a filibuster, it's possible Democrats would join with dissident Republicans to defeat her outright.

It's one thing to grill Miers about the Roe v. Wade. That's what they did to John Roberts. It's an ordinary ritual that any nominee should have to endure. It's quite another thing to make the October 3 conference call the object of an intense investigation, with the participants subpoenaed and expected to hold up to grilling -- under oath -- about what was said. It seems to me that the decision to do that would be tantamount to an open demand that the nomination be withdrawn.

Suffering with the thermostat at 65. Staying warm in the winter is imperative, and facing increased heating bills is hard, but why are people drastically overheating their houses in the first place? Would the prices be going up the way they are if we weren't overconsuming? I'll bet when the temperature outside is 78, this woman turns on the air conditioning! Now, she's piling on sweaters and extra blankets to deal with an indoor temperature of 65. You should have turned the thermostat down to 65 long before the prices went up. You would be healthier and sturdier now if you hadn't been slow-roasting yourself all these years. You'd be even better off at 62 degrees, especially while sleeping. Putting the thermostat above 70 is like driving a big gas guzzler car, except that other people don't see your overconsumption -- unless you take up whining to the press about how much you miss creating T-shirt weather indoors year round.

David Bernstein notes that blogosphere conservatives seem to have fixed on Janice Rogers Brown as the ideal choice for the Supreme Court and that Miers is the perfect opposite of Brown:

In terms of her record, her outspokenessness, her visibility, her willingness to court controversy in defense of her principles, her independent-mindedness, and just about everything else, Harriet Miers is basically the anti-Brown (or, if you prefer, the Brown of the Bizarro universe). The only thing they seem to have in common is that Miers -- as dull as Brown is interesting, as moderate-seeming as Brown is radical, as untested as a judge as Brown is experienced, as fiery a rhetoritician as Miers is a mouther of platitudes, as establishmentarian as Brown is individualist--may not be confirmable, either.

The two women present very different confirmability problems, however. If you're going to have a fight, why would you choose to have the Miers fight rather than the Brown fight? If the answer is that Bush didn't think people would fight Miers, why did he misunderstand his own party so badly?

Or is this, once again, misunderestimating Bush? The Brown fight would galvanize Democrats. The Miers fight leaves them completely confused.

Sights like this are common on L.A.'s skid row, a rock-bottom depository and national embarrassment. A place where disease, abuse, crime and hard-luck misery are on public display and have been for years, conveniently out of sight and mind for most Angelenos....

This is not the only place on skid row where business thrives in Porta-Potties. Prostitution, drug dealing and drug abuse are common in toilets across the eastern flank of downtown. The outhouses were put here to keep people from defecating on the street. Instead they provide a hiding place for crime, and urine still runs in the gutters.

Hillary Clinton does not want any other woman to take what she regards as her just place in history. Yet, ironically, it is Hillary's candidacy that makes Condi's necessary and, therefore, likely. The first woman nominated by the Democrats can only be defeated by the first woman nominated by the Republicans....

Can Rice be nominated? The vacuum in the Republican 2008 field makes it quite possible that she can.There is no heir apparent. Dick Cheney's health isn't strong enough, and nobody else from the cabinet stands out. Rudy Giuliani and John McCain are the early front-runners, gathering together more than four out of every five decided votes in the polls. But Rudy is too liberal to win the nomination. And McCain showed his limited appeal to GOP primary voters in 2000, when he won the votes of Independents but lost the vast majority of registered Republicans to Bush.

As meritorious as these two men are, they aren't going to win the Republican nomination. Their likely demise will leave an enormous vacuum. There will be a search for a real candidate, someone of stature, someone charismatic who can beat Hillary. And the party faithful will turn to Condi Rice.

Morris's gimmick is to speak with certainty about the future. He already knows it will be Clinton against Rice. Why doesn't he just tell us who's going to win too? It would be interesting to know.

Looking for fall foliage in the Madison area? Here's last year's post with lots of suggestions! I'm going to follow one of them, and, with luck, will be back with some photos. Actually, I think it's really hard to photograph fall foliage. It's already pretty, and what can you add, what can you say about it by making it into a picture? I will only post photos if I think I've answered that question, so wish me luck.

Film documentarians often pick up bits of songs (or glimpses of TV shows) and are shocked at the prices asked for the right to use the material -- perhaps far more than the cost of making the film. And now that everyone's cell phone rings a copyrighted song, they might have to pay $10,000 just to keep the footage where the phone rings.

Jonathan Glater asks, a propos of David Brooks's observation that Harriet Miers's written work, as president of the Texas Bar Association, was "vapid" and "pedestrian." Glater brushes aside the explanation that bar association work requires a certain blandness to avoid controversy:

Avoiding controversy does not explain, for example, this carefully convoluted sentence Ms. Miers wrote in a September 1992 column: "We have to understand and appreciate that achieving justice for all is in jeopardy before a call to arms to assist in obtaining support for the justice system will be effective."

When lawyers write professionally they adopt the style of what they read: judicial opinions, legal briefs and law review articles, which are not scintillating stuff. For those who have a creative flair when they begin law school, keeping that spark alive requires effort. "After graduating they go into a law office somewhere where lawyerspeak is encouraged," said Stephen Gillers, a professor at New York University Law School. "Once you get far enough down that road, it becomes hopeless."

There is a generic style that seems "professional," but good lawyers know there is a better level of writing that is much crisper and tighter, even if it too lacks personal style.

The autistic boy becomes a teenager and wants a girlfriend. The parents have always told the boy "Look at the other kids. Watch them, play like them." Now, when he sees a girl and says "She's hot," they assume behind the conventional form of expression, he's talking about what he really feels.

Just as he's learned our language and our customs with a lot of hard work and memorization, he'll soon have to learn how to navigate the world of sex. But how? Through imitation and observation? Through rules we teach him? No. The same kids he has studied and imitated to gain other social skills are going to be fumbling in the dark themselves, behind closed doors. And in this particular game I don't foresee his father and me doing much coaching from the sidelines. He'll truly have to find his own way.

The author of the linked piece, in addition to her personal experience, has written a book, called -- tellingly -- "Overcoming Autism." But I note the existence of the Autistic Liberation Front, which would approach the problem very differently, embracing the different ways of the autistic. Especially in love, there is something so painful about the idea of aping the ways of the other kids. But the problem described in the article is that the boy -- who, we're told, is very good looking -- cannot attract the girls he sees as "hot."

My faculty guide led me into a comfortable room in the Multicultural/LGBT Student Center, where about 12 students were gathered around open boxes of pizza and bottles of soda on a coffee table. A few looked up and smiled at me, and my faculty escort called one of them over and introduced her.

"Leslie, this is Dr. Haladay from the University of California. I'll leave her to speak with all of you until around 7:30, then I'll come and take her over to the job talk."

"OK," said Leslie, a pale young woman with short black hair and Buddy Holly glasses. "Nice to meet you, Dr. Haladay. Should we start off by introducing ourselves?"

Leslie asked the students to assemble in a circle and told them what was happening. "OK, we're starting with introductions, everybody, so why don't we all say our name, our year in school, our major, and our pronoun. I'll start."

I suddenly felt like I was back in the stairwell trying to decode one of the fliers. Pronoun? I didn't have time to dwell on it.

"My name is Leslie, I'm a fourth year in comparative ethnic, gender, and global studies, and I go by 'he.'" I stared at Leslie a little too long as I tried to grasp "his" words and readjust my obviously gender-biased and inaccurate first impression.

Then I smiled, probably too much.

The next person in the circle was a young Latina with thick, long hair and a red hair band. "My name is Nana, I'm queer, and I go by 'she,'" said Nana. "I'm in sociology, and I'm about to graduate. Yay!"

Jonny wore a black leather vest and motorcycle boots, and had multiple facial piercings, sparkling blue eye shadow, and a goatee -- and also claimed the pronoun "she."

Now it's the interviewee's turn to introduce herself. Will she follow the group's format and give a go-by pronoun? There are three good reasons to do so: 1. It will help her get the job she wants, 2. It's friendly and polite to adopt the convention of a group you join (if each member had stated his (!) favorite color at the end of the introduction, it would be casual and nice to state yours), 3. I had a third reason, but if it was so good, why have I forgotten it? (Maybe you can think of one.)

Side note: The sign on the door of the unisex bathroom was "a block of prose in rather small writing explaining the gendered politics of the public toilet." (For Althouse opinion on transgender bathrooms, start here.)

The thesis of the book, to be blunt about it, is that art in Manhattan passed in midcentury and beyond from the nighttime creations of existential, heroic, romantic, art-history-minded revolutionaries hardened in the 30's to the daytime works of empirical, eclectic, unheroic, relatively theory-free individualists who had ripened in the shadow of the action-painting giants.

I want to break out a criticism of Perl's writing:

In his commendable desire to stretch the language of visual perception and philosophical understanding, Perl coins compound adjectives as if hyphens were snowing upon his word processor. We have: "the individual's at-an-angle relationship with society," "go-with-the-flow neighbors," "an increasingly knit-together, everything-is-one-thing, homogenous character," "knock-you-in-your-teeth actualities," "the wacky-bleak fascination of a play by Samuel Beckett," "this everything-becoming-something-else moment," "more-than-material yet grounded in the materials of art," "the whatever-happens-happens nihilism," "Ashbery's go-with-what-amuses-you attitude," and "the stark, nobody-knows-you-when-you're-down-and-out decrepitude." Some of these Germanic compounds, like "at-an-angle" and "go-with-the-flow," are handy enough to be used more than once, but they are, along with stretch adverbs like "amazingly," "infinitely" and "immensely," and such tenuous concepts as "everydayness," "brownishness" and an "ordinariness" that "melts into the silveriness of the images," symptomatic of the stresses placed on the vocabulary of those who would write about art.

I must say I love "Germanic compounds" -- when they are properly expressive. I see Updike uses them himself -- e.g., "art-history-minded" -- and doesn't seem all that critical of Perl for writing like that. It gives me the feeling of someone talking excitedly about specific ideas that have just formed in his head -- when it's done well.